Children Law

Who Can Adopt

To be able to adopt in the UK you must be:
A single person or a couple (whether married or in a civil partnership or not and whether of different gender or the same gender). In each case there are specific requirements which must be satisfied before an adoption order is made.

Adoption by a couple

Each of the applicant couple must have attained the age of 21 years (except where one is the mother or father of the child, in which case the parent must be over 18 years). There is no legal upper age limit for an adoptive parent, but adoption agencies will not usually place a child with adopters where the age gap between the child and the adopters is more than 45 years unless the child has special needs.

There is no discrimination on the grounds of sexual orientation or against a couple who have chosen not to formalise their relationship through a marriage or civil partnership. But, it is important to understand that adoption agencies and courts will be concerned to ensure the couple’s relationship is committed (‘an enduring family relationship’) for the sake of the child’s stability. A couple wishing to adopt must be living together ‘as partners’. A couple of relatives living together are not considered as ‘a couple’.

An application for an adoption order may be made if one of the following two conditions is satisfied:

1. At least one of the couple must be domiciled in a part of the British Islands;
2. Both of the couple have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.

Different considerations apply where a child is brought in to the UK for the purpose of achieving a UK adoption. The law relating to international adoptions is very complex, and specialist advice should be sought.

Where the child has not been placed for adoption by an adoption agency there is an additional requirement that the child must have his home with the adopters, or at least one of them, within England and Wales, for a specified period (between 10 weeks and 3 years, depending on the adopters’ connection with the child).

Adoption by one person

An adoption application (unless it is a Convention (international) application) may only be made by a sole applicant if either:

1. He or she is domiciled in the British Islands;
2. He or she has been habitually resident in the British Islands for a period of not less than one year ending with the date of the application.

An adoption order may be made on the application of one person if:

1. He or she has attained the age of 21 years; and
2. He or she is unmarried or, if married or in a civil partnership, the court is satisfied that:
   • His or her spouse/civil partner cannot be found; or
   • He or she has permanently separated from his spouse/civil partner; or
   • His or her spouse’s/civil partner’s physical or mental health is such that they are incapable of making an application for an order; or
3. (unless the adoptive placement was made by an adoption agency) the child has his home with the applicant within England and Wales.

Adoption of a child by spouse/partner

A child’s step-parent may make an application for an adoption order on his own. He or she must satisfy the basic requirements (above).

A person who is the partner of the child’s parent is permitted to make an application to adopt on their own. On adoption, the child will be treated in law as being the child of the adopter (the non-parent partner) and the other partner (the birth parent).

In this case, the legal relationship between the child and the natural parent who is not the step-parent’s partner will be extinguished. If the other parent had a former established relationship with the child, or if the child objects, the courts show a reluctance to make step-parent adoption orders.

A married step-parent may now acquire parental responsibility by way of a parental responsibility agreement or parental responsibility order.

Should a relative wish to apply for an adoption order, the court may think a child arrangements order or special guardianship order is more appropriate as it maintains the family links, yet gives parental responsibility to the relative.

A natural parent

A natural parent may make a joint application with his or her spouse to adopt his or her own child. In this case, the age requirement is relaxed so that an adoption order may be made provided that the mother or father have reached the age of 18 and his or her spouse has attained the age of 21 years. Such an application is only likely to succeed where the identity of the child’s other birth parent is unknown or he or she has not played, nor wishes to play, a role in the child’s life.

The only lawful route for non-relatives to apply to adopt a child is through a local authority or adoption agency. Effectively, selection of prospective adopters is controlled by local authorities and the adoption agencies. They themselves have to follow national guidelines concerning age, health, and cultural requirements.

Any prospective adopters need to successfully complete an adoption assessment before they can adopt.

The law relating to international adoptions is complex and so we recommend you seek specific legal advice from one of our Family Law Specialists with regard to this area – call 01206 835320 or email [email protected].

 

Who Can Be Adopted

Only a person who is under the age of 18 years may have an adoption application made in respect of them, but an adoption order may be made after that age if the person is still under 19 years old.

Most adoptions relate to younger children, but, given the need to look to the child’s welfare throughout his lifetime, an adoption order for a late teenager may sometimes be appropriate.

Over the last twenty years, there has been a growing awareness of the need to provide adopted children with a complete picture of their birth family, often by creation of a ‘life story book’ with words and pictures in appropriate terms, as well as a ‘later life letter’ which sets out details of the child’s natural family in more adult language.

There is no explicit provision for contact with the birth family after adoption. When making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child, and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings. If the court decides to make an order allowing contact, it will do so as a child arrangements order. If a parent wishes to have contact with a child they should make the application at the time of the adoption application if possible.

After an adoption order has been made the courts are very restrictive with contact applications and priority is given to the need to maintain the stability of the adoptive placement.  After an adoption order is made a parent can apply for contact under new provisions that have been made within the Children and Families Act 2014, amending the Adoption and Children Act 2002.

Indirect contact may continue to take place after adoption, in the form of letters or reports sent once or twice a year (maybe with photos). Direct face-to-face contact is not usual, but if the child is older or if there are siblings meetings, it may take place. The benefit of this post-adoption contact taking place is that the child will have the benefit of awareness of his or her background as he grows older.

Adoption Contact Register

Once an adopted person reaches the age of 18 years old, he or she may enter their details into the first part of this register if they wish to facilitate reopening contact with the natural family.

This is a private register held by the Registrar General to assist those adopted people and their birth families who wish to express a view about future contact with each other. The register eases the practical problems involved in tracing relatives and anyone who is a birth family member of someone who has been adopted can have their name and current address entered on it at any time after the making of the adoption order and after the entry of the child’s name into the Adopted Children Register.

One part contains information provided by the adopted person about his wishes for having contact (or not) with his birth relatives.

The other part has information about any relative of the adopted person, by blood, half-blood, marriage, or civil partnership (but not adoption) who wishes to express a view about contact with the adopted person.

The Registrar General sends to the named adopted person in the first part, the name and address of any relative entered into the second part who has asked for contact.

In practise, few adopters will wish for regular face-to-face contact because of the need to provide security and stability for the child. Although courts have the power to order contact, they will often refuse to do so, even where the adopters have made an informal commitment to allow contact.

For more information, you should contact our Family Law Specialists who can provide you with advice and assistance on adoption procedures – call 01206 835320 or email [email protected].

Adoption has a number of important legal implications, and anyone involved in adoption proceedings should take legal advice as early as possible. These are court proceedings, and the confidential nature of the adoption procedure makes it all the more important to get legal representation simply to find out what is actually going on.

Where the parents have clearly indicated consent to adoption, legal representation may not strictly be necessary, and sometimes the adoption agency provides all the help that is needed to explain and help with the court procedure.

In contested proceedings (where there is no parental consent), legal representation is essential. It is doubtful that birth parents would qualify for Legal Aid but some local authorities will meet the cost of representing the adopters if they do not qualify for Legal Aid.

In either case, make sure the solicitor is a member of the Children Panel, who has been accredited to represent children and others in care and/or adoption cases.

If you have any further questions regarding the orders which courts can make within care proceedings and the help that Fisher Jones Greenwood can provide, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

There are two routes by which an adoption agency, including a local authority, may be authorised to place a child for adoption:

1. Placement with parental consent
2. Placement under a placement order made by the Family Court

An application for adoption must be started in the Family Court in which the child is living. If the child is not in the country at the time of the application, it must be made in the High Court. If there have been any previous court cases (i.e. care proceedings) then the application should be made to the court which dealt with them last.

The court or adoption agency’s paramount consideration when coming to a decision relating to the adoption of a child is the child’s welfare throughout his or her life. They must have regard, among other things to the adoption welfare checklist.

Consent

The process depends on whether or not the birth parents give their consent to the adoption. If they do, then that needs to be checked and the social work assessment is filed at court. Sometimes, the birth parents do not consent, but do not actively oppose. In that case, the procedure runs as below, subject to several variations:

The court cannot make an adoption order without the consent of all those with parental responsibility or until the court decides to dispense with the parents consent, if they are unwilling or unable to provide this – this is called ‘dispensing with consent’.

The consent of the father without parental responsibility is not required within adoption proceedings. However, adoption agencies and local authorities must be careful to establish, where possible, the identity of the child’s father and, unless there are good reasons not to do so, notify him of the adoption application. The father then has an opportunity to apply for parental responsibility within the proceedings and oppose the making of the adoption order.

Where a court has been asked to dispense with consent, the applicant (the adopter) must give notice of the request to dispense with consent in the application form, or at any later stage file a written request setting out the reasons for the request, and must file a statement of facts setting out a summary of the history of the case and any other facts to satisfy the court of the grounds for dispensation.

An adoption order may only be made if the court is satisfied in the case of each parent or legal guardian of the child:

1. That the parent or legal guardian consents to the making of the adoption order
   • Unconditionally; and
   • With full understanding of what is involved; or
2. That the parent or legal guardian has given advance consent to adoption (and has not withdrawn consent) and does not oppose the making of the adoption order; or
3. That the parent’s or legal guardian’s consent should be dispensed with under one or both of the two grounds:
   • The parent or legal guardian cannot be found or is incapable of giving consent;
   • The welfare of the child requires the consent to be dispensed with.

The child’s welfare will be the paramount consideration in determining the issue of dispensing with parental consent. Therefore, the adoption welfare checklist must be applied in determining the consent issue.

For further information, contact our Family Law Specialists (by calling 01206 835320 or emailing [email protected]) who can provide you with advice and assistance on adoption procedures.

Adoption is a serious matter. It will change the life of the child who is adopted permanently. Sometimes people think of adoption when they are only seeking to change the carer of the child: it may well be that if this is within the family, then adoption is not the best idea at all.

Long-Term Foster Care

Adoption may not be suitable for all children who are taken into care. Every child has a right to a secure home, and for people to look after him or her, but some children are unable to settle into another family who might adopt them.

There are children who are removed from their home because of abuse or neglect and in these cases, Social Services will first look for another possible member of the family to step in and care for the child. It may be that a care order, with the child fostered to grandparents or another family member, is the better outcome.

Special Guardianship Orders

Foster care sometimes does not provide the children with the sense of security that the child needs, and the carers themselves can often feel frustrated that they are not able to make decisions for a child in their care. Special guardianship orders were created to satisfy both these issues. Special guardianship orders create the long-term stability for the child by investing overriding parental responsibility with the carers, whilst still maintaining the legal bonds with the natural parents.

Some examples of where Special Guardianship may be preferred are when:

• A family member does not want to fully adopt the child but wants to be able to have control of the day to day decisions about their welfare.
• Adoption conflicts with the family’s religion or culture and with kinship care.

Child Arrangements Orders

Another option is to apply for an order for the child to live with a particular family member or other carer who will care for the child. This would automatically give the person caring for the child parental responsibility, allowing them to make decisions about the child and his future, in consultation with the birth parents.

Parental Responsibility Agreement or Order

With this agreement, the step-parent will share parental responsibility with the child’s parents. Importantly, the step-parent can make decisions that a parent with parental responsibility would be able to make.

If you have any further questions regarding the possible alternatives to adoption, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Whenever a court or adoption agency is coming to a decision relating to the adoption of a child, the paramount consideration must be the child’s welfare throughout his or her life.  The circumstances in which this paramount principle applies include those where the issue is whether or not to dispense with parental consent to placement and/or adoption.

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

The court or adoption agency must also have regard, among other things, to the adoption ‘welfare checklist’:

1. The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding);
2. The child’s particular needs;
3. The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person;
4. The child’s age, sex, background, and any of the child’s characteristics which the court or agency considers relevant;
5. Any harm which the child has suffered or is at risk of suffering;
6. The relationship which the child has with relatives and with any person in relation to whom the court or agency considers the question to be relevant including:
   • The likelihood of any such relationship continuing and the value to the child of its doing so;
   • The ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs;
   • The wishes and feelings of any of the child’s relatives or of any such person regarding the child.

The court or agency must always consider the whole range of powers available to it in the child’s case; and the court must not make any order unless it considers that making an order would be better for the child than not doing so.

For more information, you should contact our Family Law Specialists who can provide you with advice and assistance on adoption procedures – call 01206 835320, email [email protected] or make an enquiry via at the top of this page.

• Ministry of Justice
• A Guide to Adoption Services
• British Agencies for Adoption and Fostering – for help and advice
• Essex Adoption Service
• Family Lives
• Single Parent Action Network

Parents’ separation or divorce, can have an emotional impact on children of all ages. When there are disputes between parents on issues relating to their children many parents will use less contentious routes such as mediation or collaborative law rather than going to court.

In cases where it is necessary to involve the court, the approach taken is governed by the principle that the child’s interests are paramount.  The welfare checklist which provides that the following factors must be taken into account:

• The ascertainable wishes and feelings of the child concerned considered in the light of his/her age and understanding
• His/her physical, emotional, and educational needs.
• The likely effect on him/her of any change in his/her circumstances.
• His/her age, sex, background, and any characteristics of his/hers which the court considers relevant.
• Any harm which he/she has suffered or is at risk of suffering.
• How capable each of his/her parents or any other person in relation to whom the court considers the question to be relevant is in meeting his/her needs.
• The range of powers available to the court under the Children Act in the proceedings in question.

No single factor within the checklist carries more weight than any other but in each case, some factors may have more relevance than others.

A court will only make an order if it is better for the child than to make no order at all.

A court will ensure that decisions are made without undue delay. Parents are always encouraged to reach an agreement provided that they are safe for the children.  In most cases, agreements are better than court imposed settlements and are more likely to stand the test of time.

Fisher Jones Greenwood can help you with mediation, collaborative law, or negotiate arrangements for your children on your behalf. However, sometimes seeking a court order is the only available solution for parents and our family law specialists have many years experience in obtaining court orders in relation to children, including:

Parental responsibility is the most important concept when looking at making arrangements for children.

Parental responsibility includes all the rights, duties, and responsibilities which a parent has in relation to a child. This will include such responsibilities as decisions about which school the child should attend, religious upbringing, or medical treatment the child should receive.

Any person with parental responsibility may make a decision about the child, but if there is more than one person with parental responsibility and they cannot agree, then a court may need to decide for them.

Who has parental responsibility?

Mothers
A mother always has parental responsibility for her child and cannot lose it, unless the child is adopted.

Fathers
A father who is married to the mother of the child, will automatically have parental responsibility for that child.

An unmarried father of any child whose birth was registered before 1 December 2003, will not automatically have parental responsibility and will need to acquire it by one of the methods set out below.

An unmarried father who is named on a birth certificate of a child whose birth was registered after 1st December 2003, will have parental responsibility. This is not retrospective.

How can I acquire parental responsibility?

A father who does not have parental responsibility can obtain it by

1. Parental responsibility agreement. A simple form can be completed, which then has to be signed by both the father and the mother in the presence of a magistrate or court official. Proof of identity is required. The form is then lodged with the court.
2. By the court making a child arrangements order specifying the child is to live with their father.
3. By the court making a parental responsibility order.

As with all decisions made about children in court, for the court to grant a parental responsibility order it must be satisfied that it is in the children’s best interests. The court will look at:

• The commitment a father has shown to the child
• The strength of attachment between the father and child
• The reason for the application

Generally, a father who shows sufficient commitment to his child will usually be granted a parental responsibility order.

Step-parents and civil partners can also acquire parental responsibility through a parental responsibility agreement, or the court making a child arrangements order specifying that the child is to live with them, or a parental responsibility order.

Grandparents or other adults with a child arrangements order specifying the child is to live with them, or a special guardianship order will automatically have parental responsibility. Parental responsibility granted under a special guardianship order overrides that of the natural parents.

How can parental responsibility be lost?

If a child is adopted then the adoptive parents will have parental responsibility and the natural parents will lose parental responsibility.

Parental responsibility which has been granted by a court order will come to an end when the order comes to an end.

The court has power to take away parental responsibility acquired under parental responsibility agreements in rare cases where the court decides it is appropriate.

If you have any questions about parental responsibility, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Holidays

Taking children abroad on holiday is part of normal family life and if everyone with parental responsibility agrees, no permission of the court is needed. In most cases it would not be difficult to persuade a court that a holiday abroad is in the best interests of a child. However, if there are genuine concerns about the welfare of a child or that a child may not be returned (child abduction) then urgent action may be necessary.

A person with a child arrangements order specifying that the relevant child lives with them, may normally take the child referred to out of the UK for periods of less than one month without consent of another person or a court order.

Where there is a child arrangements order, specifying who the child lives with in force, no person can remove the child from the UK without written consent from all those with parental responsibility or permission from the court.

It is very important to check the requirements of all countries being visited before leaving the UK as written consent may be required.

If agreement cannot be reached about arrangements for a holiday abroad, then a court can resolve it by using a child arrangements order, a specific issue order, or a prohibited steps order.

Relocation

Taking a child abroad for longer periods of time, for example, a temporary posting or permanently, can be one of the most difficult issues that separated parents may have to face. As with all cases concerning children, the most important consideration is the welfare of the child. Mediation may well assist the parties in reaching agreement to meet the needs of the children for them to maintain a good relationship with both parents.

As UK courts may not have jurisdiction over children living outside the UK, it may be necessary for the arrangements to be incorporated in a court order made in the UK and also a ‘mirror order’ made by a court in the jurisdiction where a child will be living.

If agreement is not possible and an application to a court is necessary, then it is important to obtain specialist legal advice at as early stage as possible in order to ensure that your application has the best possible prospects of success.

If you have any questions about taking a child abroad, please contact our Family Law Specialists for specific advice – call 01206 835320 or email [email protected].

Mediation is a process by which a couple can negotiate on issues which they have been unable to agree with a trained neutral third party. It is a voluntary process, but one which is effective in resolving disputes that may otherwise end up in costly court proceedings. In mediation, the parties decide the outcome rather than leaving decisions to a judge.

Family mediation can help resolve issues relating to the children or to finances on the breakdown of a relationship.

While mediation is not counselling, which can assist with the reconciliation of couples, trained family mediator solicitors assist with the breakdown of relationships and the issues that arise from that.

The mediator will first have to consider whether mediation is suitable in the circumstances and whether mediation will be able to help the parties reach an agreement. The mediator will speak to the parties individually and ask them the same questions to ensure they understand how the process works. This meeting is called a Mediation Information Assessment Meeting (MIAM).

Attendance at a MIAM is required before a court application is made in relation to the finances or children matters.

If you are going through mediation with another mediator we can advise you about the process and answer any questions that you might have about financial disclosure or settlement discussions.  If an agreement is reached, we can advise you on the terms required which makes the settlement legally binding in the court.

Legal Aid called ‘Help With Mediation’ is available for those that qualify financially for it. Contact one of our Family Law Specialists to find out if you are eligible – call 01206 835320 or email [email protected].

Child Abduction in the UK

If a child is removed from, or not returned to, a parent with whom they have been living, urgent action is required. A court has power to make an emergency child arrangements order or prohibited steps order.

It is also possible to apply to the court for an order which directs any person who may have information about the child’s whereabouts to disclose it to the court. This could be used to force relatives or friends of the abductor to disclose addresses or likely destinations.

An order authorising a search for, taking charge of, and taking delivery of, a child can be made which authorises court officials and the police to locate and protect a child.

We have a specialist team of solicitors based at offices close to courts who are experienced in making emergency applications for the protection of children.

Legal Aid may be available.

If you believe that a child is about to be abducted abroad

There is action which can be taken to assist in the prevention of a threatened abduction including port alerts, and orders preventing issue of passports and requiring the surrender of passports.

Action needs to be taken swiftly, including applying for an emergency child arrangements order or prohibited steps order.

Legal Aid may be available.

Recovering a child abducted abroad

If a child has been abducted overseas, then what action can be taken depends on the country where the child has been taken.  The first step is to contact the International Child Abduction and Contact Unit which is the body responsible for administering the Hague Convention in England.  Where it is possible to assist, the ICACU will normally contact the Central Authority in the country to which the child has been taken and request that action be taken to return the child to the UK.  Once the child has been returned there may need to be action in the UK to determine who the child will live with and whether they should be taken abroad.

The contact details for the International Child Abduction and Contact Unit are:
Tel: 020 3681 2608 (Monday – Friday 10am – 4pm) Emergency out of hours 0116 2556 234
Fax: 020 3681 2763 e-mail: [email protected]

See Reunite’s website for further information and support in relation to child abduction.

Legal Aid may be available.

If you have come to the UK and have been accused of abducting a child

The courts in the UK will usually order the return of children who have been abducted to the country where they normally reside so that issues as to where the children should live and who they live with can be dealt with there.  It is very important that you obtain specialist legal advice on the facts of your case as soon as possible.

A special guardianship order appoints one or more individuals to be the ‘special guardian(s)’ of a child or young person. This gives legal recognition to a non-parent caring for a child or young person on a day to day basis and who wishes to care for the child/young person long-term whilst still maintaining the child’s links with their birth parents. An order of this kind may be made within ‘private law proceedings’ (where there is no involvement of the local authority) or within care or adoption proceedings.

Grandparents usually play an important role in the lives of their grandchildren and, naturally, the separation of their grandchildren’s parents is often a cause for anxiety. If things are not working within the family, perhaps because parents cannot cope with their children, and social workers become involved, they will often look for another member of the family to take care of the children before turning to foster carers.

Do ‘grandparent’s rights’ exist?

Not specifically, because the Children Act focuses on the needs of the child. However, it is usually the case that it is in the best interests of children to continue to enjoy a strong relationship with their grandparents, and many parents welcome the assistance that grandparents can give in helping them bring up their children. Often the children’s time with their grandparents takes place as part of the children’s time with their parents.

What action can a grandparent take if they are not seeing their grandchildren?

Any person concerned about a child, can apply to a court for an order in relation to the child’s welfare. A parent can apply as of right, but anyone else has to complete a preliminary step; applying for permission from the court to make an application. A person does not have to apply for permission from the court where:

• The child has lived with them for 3 years during the last 5 years, and within the preceding 3 months
• Those with parental responsibility give their consent
• There is already permission given (special requirements apply to some foster carers)

We would always recommend that mediation is considered before an application is made to the court. In cases where mediation is not practical or has failed, it is important to obtain practical legal advice as to how a court is likely to view the application. As with any case involving children, it is essential that this is done at an early stage. Arrangements for children can become established in a short period of time and, as can be seen above, time limits can apply to applications to the court.

What about long term care of grandchildren?

There are several options if parents are not able to look after their children and, again, early legal advice as to the best course of action is important, particularly if social workers are involved.

Applying for a child arrangements order may be the best first step. Sometimes, grandparents will adopt their grandchildren but in other cases a special guardianship order is an alternative which provides long term security for children who cannot live with their parents. There are different considerations which apply to each of these options and the approval of the court, and sometimes the local authority, maybe required.

If there are care proceedings, friends or relatives care, or ‘kinship care’ can be organised through a private arrangement or formalised in a court order. In this situation, the local authority retains parental responsibility for the child and places the child with the friend or relative who is a foster carer. The local authority will be involved and any prospective kinship carer assessed.

If you have any questions about your legal rights as a grandparent, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Living with stepchildren is increasingly common. Step-parents, and this term includes civil partners having registered a civil partnership with a child’s parent, are likely to develop close relationships with children who may, or may not, be in close contact with a non-resident birth parent. The law has always placed considerable importance on the rights and responsibilities of birth parents, but to what extent can a step-parent acquire rights and responsibilities for children with whom they have a relationship?

Parental responsibility is the most important concept in the relationship between parents and children but, although step-parents are frequently living with and caring for the children of their spouse or civil partner, a step-parent does not acquire parental responsibility for a child simply by marrying or entering into a civil partnership with the parent of that child. If a child requires medical treatment or is involved with the authorities, for example the police wish to question the child, they will often need to deal with a person with parental responsibility.

How can a step-parent acquire parental responsibility?

1. Through a parental responsibility agreement
   A parental responsibility agreement is a formal document which is signed by a birth parent or both parents, if they both have parental responsibility, and registered with the court. An unmarried partner is not a step-parent of the children of their partner and cannot acquire parental responsibility for their partner’s children using this route.
2. By the court making a child arrangements order
   If the court makes an order that a child reside with a step-parent, either on their own or jointly with another person, probably a birth parent of the child, then the step-parent will acquire parental responsibility for that child.
3. By the court making a parental responsibility order
   As in all cases concerning children, the court would base its decision on what is in the best interests of the child.
4. By adoption
   By adopting a child, a step-parent acquires parental responsibility for that child.
5. By being appointed guardian
   If a person is appointed as guardian in a will by a person with parental responsibility for a child, the guardian will acquire parental responsibility but only on the death of all those with parental responsibility.

What about other people with parental responsibility?

The acquisition of parental responsibility by a step-parent does not affect the parental responsibility of the other people with parental responsibility, unless an adoption order is made. Any person with parental responsibility may make a decision about the child, but if there is more than one person with parental responsibility and they cannot agree, then a court may need to decide for them.

If you have any questions about the rights of step-parents, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

A child arrangements order sets out who a child is to live with and/or who a child is to spend time with. The decisions made by this type of order used to be set out in residence orders, and contact orders. The aim behind the introduction of child arrangements orders was to be more straightforward and child focused. If you currently have a residence order or contact order in place, you do not need to reapply.

A court will only make an order in relation to a child if it considers that it is necessary to do so.  In most cases parents will agree the arrangements for their children and the court will not make any order.

When making decisions about children the most important consideration is the welfare of the child. The court must ensure that any arrangements put in place are safe for the children, and that they will not be exposed to any risk of harm. The court will have regard to the welfare checklist as set out below:

• The ascertainable wishes and feelings of the child concerned considered in the light of their age and understanding
• The child’s physical, emotional and educational needs.
• The likely effect on the child of any change in their circumstances.
• The child’s age, sex, background and any characteristics which the court considers relevant.
• Any harm which the child has suffered or is at risk of suffering.
• How capable each of the child’s parents or any other person in relation to whom the court considers the question to be relevant is in meeting their needs.
• The range of powers available to the court under the Children Act in the proceedings in question.

If parents cannot agree where a child will live and/or who they will spend time with, the court will make a decision. Parents will however be encouraged to reach agreement between themselves, including using mediation.

The making of a child arrangements order does not take away parental responsibility from people who already have parental responsibility.

A child arrangements order setting out who a child will live with can be made in favour of people who do not have parental responsibility. In such a case, that person will automatically acquire parental responsibility as well, but only for so long as the Order is in force.  Parental responsibility acquired in this way is subject to limitations.

The court does sometimes make an order for the child to live with more than one person. This used to be called shared residence. It does not necessarily mean that the child would spend equal time with each party. The court has wide ranging powers and will tailor the order to meet the specific needs of each case.

A child arrangements order is often made at the same time as a specific issue order or a prohibited steps order.

Where an application for a child arrangements order concerns who the child is to spend time with, the court has wide ranging powers as to the forms of contact that can be put in place. The contact can be direct, face to face, or indirect, such as telephone calls, emails and letters, or by Skype. Indirect contact may be agreed or ordered by the court in cases where the parents live far apart or where there are serious concerns of risk of harm to the child if direct contact takes place.

The contact may be supervised where another appropriate person is present. Contact may also take place at a contact centre. Contact centres have been set up across the country and are often staffed by volunteers. Contact at a contact centre is usually for a short term only and is often supported rather than supervised.

Where there is a child arrangements order specifying with whom a child is to live in force, no person can cause the child to be known by a new surname or remove the child from the UK, without written consent from all those with parental responsibility or permission from the court. However, this does not mean that, just because a child arrangements order is not in place, anyone can change a child’s name or remove a child from the UK without the permission of all those with parental responsibility or an order of the court. See parental responsibility and taking children abroad.

A person with a child arrangements order specifying the child is to live with them, may take the child referred to out of the UK for periods of less than one month without consent of the other person or a court order.  The person without the Order needs to seek consent if they wish to take that child abroad.

Should a party not comply with a child arrangements order, an application can be made to the court to have the order enforced. The court has various powers to enforce an order, including ordering the other parent to pay a fine, do unpaid work, pay compensation and even committal to prison. Sometimes a court may consider changing who the child lives with if contact is not taking place.

If the court considers it would be helpful, it can direct that the parents attend a parenting information programme (SPIP) to assist parents in understanding the impact of their separation on their children.

A child arrangements order can have important implications on the future arrangements for a child and it is important to obtain specific legal advice on your circumstances before making an application to the court or agreeing to a child arrangements order being made.

We offer a range of different alternatives to resolving disputes without going to court including mediation and collaborative family law.

If you have any questions about child arrangements order, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

A specific issue order gives directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child.

This can be used in an emergency or to resolve an anticipated dispute. In emergency cases, the courts have the power to act quickly to take decisions about children.

Examples of possible specific issue orders:

• An order determining issues of a child’s religion or medical treatment
• An order requiring the return of the child to the UK – see taking children abroad
• An order determining a child’s name
• An order determining which school a child should attend
• An order determining that a parent can take the child abroad for a holiday

Specific issue orders can only relate to actions that could be taken by a parent in meeting his or her parental responsibility. The court cannot make a specific issue order with a view to achieving a result that could be achieved by a child arrangements order.

A specific issue order will not normally remain in force after the child’s 16th birthday unless there are exceptional circumstances. However, the order may be varied or discharged by the court before this time.

A court will only make an order in relation to a child if it considers that it is necessary to do so. Child arrangements orders are often made at the same time as specific issue orders.

When making decisions about children the most important consideration is the welfare of the child.

We offer a range of different alternatives to resolving disputes without going to court including mediation and collaborative family law.

If you have any questions about specific issue orders, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

A prohibited steps order prevents a specific action being taken by a person in relation to a child.

This can be used in an emergency or to resolve an anticipated dispute. In emergency cases, the courts have the power to act quickly to prevent steps being taken by one parent without the consent of another parent.

Examples of possible prohibited steps orders:

• An order preventing removal of a child from the UK
• An order preventing the child from having certain surgery
• An order preventing the change of a child’s schooling
• An order that a child’s name should not be changed
• An order prohibiting someone from allowing a child to have contact with another named individual

A prohibited steps order can be directed at ‘any person’ but the actions prohibited may only be those that could be taken by a parent in meeting his or her parental responsibility. The court cannot make a prohibited steps order with a view to achieving a result that could be achieved by the court making a child arrangements order.

A prohibited steps order will not normally remain in force after the child’s 16th birthday unless there are exceptional circumstances. However, the order may be varied or discharged by the court before this time. A court will only make an order in relation to a child if it considers that it is necessary to do so. Child arrangements orders are often made at the same time as prohibited steps orders.

When making decisions about children the most important consideration is the welfare of the child.

We offer a range of different alternatives to resolving disputes without going to court including mediation and collaborative family law.

If you have any questions about prohibited steps orders, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Social Services and Adoption

At the conclusion of care proceedings, the court may make a care order placing the child in the care of the local authority.

At the same time, the court may make a placement order where the court authorises the local authority to place the child for adoption with prospective adopters.

A placement order can be made without the parent’s consent, only if the child is subject to a care order.

At the outset of the court proceedings, the local authority are required to consider all of the possible outcomes for the child. This is known as ‘parallel planning’ and in practise means that whilst undertaking assessments of the parents, the local authority will also be preparing the necessary paperwork should it become necessary to propose a plan for the child to be placed for adoption.

Once a child has lived with the prospective adopters for a specified amount of time, then the prospective adopters can apply for an adoption order.

Click here for further information on Adoption.

If you have any questions regarding social services and adoption, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

Child Protection Conferences

If social services receive information that a child may be at risk of harm, they will carry out an investigation. As part of this investigation, the parents will meet with the social worker to discuss the concerns.

If the conclusion of the investigation is that the child may be at risk of significant harm, which can include physical, neglect, sexual, emotional or online abuse, a child protection conference may be held.

If the child protection conference considers that the child is at risk of significant harm it will formulate a plan detailing what must happen to reduce the risks to the child and to protect them from risk of future significant harm.

Prior to the conference, the social worker will prepare a report setting out his/her concerns. The report will be shared with the parents in advance of the conference.

It is very important that the parents attend the conference so that they are able to share their views on the concerns which are being raised. Parents may ask one adult to come with them to support them. This could be a friend, relative, solicitor, or advocate but it is important that the parents inform the chairperson in advance that they will be bringing someone with them. That person may listen and observe, but not contribute to the conference.

The conference will be chaired by an independent chairperson and representatives from all agencies involved with the child will be invited to attend, for example, the Police, the GP, the Health Visitor, Probation, and the School.

At the conference, those in attendance will share what information and concerns they have in respect of the child.

After everyone has shared their concerns, the representatives from the various agencies will be asked to decide and vote as to whether they consider that the child is at risk of significant harm and as such should be the subject of a child protection plan. The parents will not be able to vote on the decision.

If it is decided that the child is at risk of significant harm, the representatives will need to agree the type of risk, for example, physical, sexual, emotional abuse, or neglect.

The contents of the child protection plan will then be agreed between the representatives, ensuring that it is clear who is responsible for the various actions considered necessary to protect the child from risk of future significant harm.

A date for a review conference will then be fixed within the next 3 months and interim reviews will then be held (if necessary) within every 6 months.

Child protection conferences are regulated by law. Please note that each local authority has its own procedures.

If you have been invited to a child protection conference, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

The Local Authority’s Duty to Provide Accommodation and Support

Children in Need

It is a local authority’s duty to protect and promote the welfare of children in need.

Children in need are defined as:-

1. Children who need local authority services to achieve or maintain a reasonable standard of health or development.
2. Children who need local authority services to prevent significant or further harm to health or development.
3. Children who are disabled.

In many cases, the local authority can work with the family, providing support services to enable the child to remain in the care of their parents.

The support which the local authority can provide can take many forms and can include (amongst many other things) the following:-

1. Advice, guidance and counselling.
2. Financial assistance (in exceptional circumstances).
3. Respite care.

Duty to Provide Accommodation

Sometimes the local authority will need to make arrangements for a child to live somewhere other than their home.

There can be a variety of reasons as to why this need arises, for example, a parent may need an operation or have serious health needs which prevents him/her from being able to care for the child.

When the local authority makes such arrangements, the child will be referred to as “looked after”.

There are two ways in which a child can be ‘looked after’ by the local authority:-

1. On a voluntary basis, or;
2. Where the child is made the subject of a court order within care proceedings.

Where the child is ‘looked after’ on a voluntary basis, the parents retain all the rights and responsibilities for the child and can remove them from the accommodation at any time.

A local authority has a duty to provide accommodation for a child in need who requires accommodation if:-

1. There is no one with legal responsibility for the child; or
2. The child is lost or has been abandoned; or
3. The person who has been caring for the child cannot continue to provide suitable care and accommodation for whatever reason; or
4. The child has reached 16 and the child’s welfare is likely to be placed seriously at risk if the local authority does not provide the child with accommodation.

If the local authority is providing accommodation for a child, then it must hold regular review meetings and draw up a plan, in writing, setting out the arrangements that will be made for the child.

The child may be accommodated with foster carers or in a children’s home. Foster carers can, in certain circumstances and subject to certain assessments, include someone from within the home, relatives or friends of the family.

Where the court has made a care order in relation to the child, the local authority will take on responsibility for the child. In these circumstances, the local authority will make arrangements for where the child should live. The parents will have input in this but will not be able to remove the child if they do not agree with the placement.

Agreeing for a child to be accommodated may help parents through a particularly tough time and may help avoid care proceedings. In certain circumstances, the local authority will ask parents to sign a written agreement to consent to the child being accommodated by the local authority. It is important that parents seek legal advice before agreeing to, or signing anything.

If you have any further questions about the duties of your local authority in your family’s life, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

Social Services Parenting Assessments

Prior to commencing care proceedings, social services are required to undertake an assessment of the child’s parents to consider their ability to care for and safeguard them from risk of harm.

If a social services assessment is being undertaken, it is important that parents seek independent legal advice at the earliest possible opportunity.

As part of social services further investigations and within care proceedings further assessments may be ordered, if considered necessary, to give further consideration to a person’s ability to care for a child.

Some typical assessments that the court may order are as follows:-

1. Parenting assessment.
2. Psychiatric assessment.
3. Psychological assessment.
4. Paediatric assessment.

Information from drug agencies, mental health agencies and others may be called upon within the context of the care proceedings.

If a child has suffered an injury which may be non-accidental, the court may order several assessments and list a “fact-finding” hearing in order to determine how the injuries were caused.

If a family member is putting themselves forward as a prospective carer for the child, an assessment will be undertaken of his/her ability to care for them. It is important that the family member understands the implications of this and he/she should seek independent legal advice at an early stage.

If a child has particular needs and/or if there are particular concerns about the child, an assessment may be undertaken on the child.

If there are concerns about children being placed together, an assessment may be undertaken to determine what, if any, risks there are in doing this and to consider the effects of separating children from their brothers/sisters.

If you have any queries relating to social services assessments, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

Child Care Proceedings

Should a social services department believe that the child is suffering or likely to suffer significant harm in its current environment, it may initiate care proceedings.

Removing a child from his or her parents without their agreement has serious and important implications and therefore only a court can authorise this. The initiation of care proceedings may follow a recommendation from a child protection case conference or review, or in an emergency the social services department would seek something called an ’emergency protection order’.

An emergency protection order is initially limited to eight days, to protect a child in an emergency where he or she is otherwise likely to suffer significant harm. It is granted by a court who will usually ask that the parents give their views before making the order. Social services might ask the police to take the child concerned into ‘police protection’ if they consider that harm, or further harm, was imminent.

If an emergency protection order is granted, this will be reviewed by the court within one or two weeks, when an application for an interim care order may be considered. If an interim care order is granted, then the social services department will take over the major decisions for the child, as it is granted overriding parental responsibility at this time.  It will then have the power to place the child in foster care, if approved by the court, while the court proceedings last. During this time, the local authority is still under a duty to promote and to support contact between the parents and their children (contact with children in care). Even if the children are placed in foster care at the start of proceedings, it is still possible for them to be returned home at the end of proceedings.

Once care proceedings have been started, the court (either the family proceedings court or the county court in more difficult cases) will take control. The court will make any orders considered necessary in the interim and will fix a timetable which will be reviewed at each subsequent court hearing, and which will set out the procedure and timescales for any assessments, reports, or statements.

These proceedings have a fixed limit of 26 weeks. If necessary the limit can be extended by a further 26 weeks in 8 week stages.

If the child is made subject to a final care order then a care plan will be put in place (see Care Plan and Reviews tab below).

If you are told by a social worker that they intend to issue care proceedings in respect of a child in your care, you should seek advice from a solicitor urgently. If you have any further questions regarding care proceedings, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

If Social Services or the Police are seeking to remove your child on an emergency basis outside normal office hours, please contact our emergency child removal hotline which is open from 5:15pm until 8:00pm weekdays and 7:00am until 8:00pm weekends on 01206 835205.

Intervention by Social Services

The protection of children from harm is the responsibility of their parents, but sometimes, this doesn’t work out.  One or both parents may have problems that mean they cannot look after the children, for instance, with mental health, alcohol or drugs, or it could be that a single parent cannot cope with the responsibilities of looking after a child or children on their own.

Each local authority has a social services department (social services) who have a duty to step in and help parents look after their children to promote the children’s interests.  As a last resort, social services are under an obligation to consider removing the children, either temporarily or long term.

Initial Investigation

It can be difficult when a social worker contacts someone in relation to the care of their children.  It is important to remember that it is their legal duty to safeguard and promote the welfare of children in their area.  If they have received a referral which raises concerns, then it is their legal duty to investigate.  If you are contacted by a social worker you should seek legal advice as soon as possible.  Legal aid may be available to help pay for legal costs.

Social services involvement with a family may begin in a number of ways.  Possibly the family has had problems over a long period of time during which social services have provided help and support, but things have now gone out of control.  It may be that a child has been injured and no one is sure how it happened or a family home has been raided by the police and the children removed in an emergency.

The first stage is an initial investigation and this may sometimes be carried out jointly with the police.

In many cases, social services will discover from their investigation that the child is not at risk and will take no further action.  On occasions, social services may believe that the family would benefit from support and may deem the child “in need”. In other circumstances, social services may take a view that the child concerned is at risk of significant harm, and hold a child protection conference.

Social workers are required to work with families, to try to keep the family together, and to provide services in order to achieve this.  Only as the last resort should they consider removing the child.  In Essex for instance, eligible families may receive the assistance of DBIT (Divisional Based Intervention Teams) who work positively with families in the hope of preventing any future local authority intervention.

If parents cannot look after a child, for whatever reason, social services must, in the first instance, look at the possibility of other family members looking after the child.

Social services can only remove a child from its parents with the parents’ consent, or with a court order.  Court proceedings are there to ensure that the parents have a fair and proper hearing of their case, so that a child is not removed without due process of the law.

Sometimes social workers will ask parents to sign an agreement that social services can take their children.  It is important that you seek legal advice as soon as social workers contact you and before signing anything.

There is an established children’s panel of solicitors qualified to act for parents and children in these types of court proceedings.  At Fisher Jones Greenwood we have a number of solicitors who are members of the Law Society’s Children Panel.

If you have been contacted by the social services department, or if you have any further questions about the duty of your local authority taking a role in your family life, please contact our Public Law Specialists – call 01206 835320 or email [email protected].

How Surrogacy Works

Surrogacy involves complicated legal issues and we recommend that you seek legal advice before making any decisions.

Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person.  The surrogate may be the child’s genetic mother (called traditional surrogacy), or she may not be the child’s genetic mother (called gestational surrogacy).

In a traditional surrogacy, the child may be conceived by:

• home artificial insemination using fresh or frozen sperm
• impregnated by intrauterine insemination
• intracervical insemination performed at a fertility clinic

A gestational surrogacy involves the transfer of a previously created embryo and for this reason the process always takes place in a clinical setting.

The intended parent or parents, may arrange a surrogate pregnancy because of female infertility, other medical issues which make pregnancy or delivery impossible, risky or otherwise undesirable, or because the intended parent or parents are male.

The sperm or eggs (gametes) may be provided by one or both of the commissioning parents, but donor sperm, eggs and embryos may also be used.

It is important to be aware that whilst surrogacy is legal in the UK, the Surrogacy Arrangements Act 1985 makes commercially arranged surrogacy (i.e. arranging surrogacy for profit) by any third party and advertising in relation to surrogacy, both in terms advertising to find a surrogate, and advertising to act as a surrogate, including online advertising, illegal. There are however, not for profit organisations, who are permitted to match surrogates with intended parents, on a non-commercial basis.

In terms of payment for surrogacy, the intended parents are permitted to pay the surrogate mother her “reasonable expenses” and this is an issue that is considered by the court when determining whether to make a parental order in favour of the intended parents.

To date, a definition of reasonable expenses has not been given, nor has any fixed amount of what is acceptable been determined, however a figure of around £15,000 has frequently been upheld as reasonable.  In practice, it is left for the court to decide what is reasonable on a case by case basis and has traditionally taken a fairly relaxed approach in this regard.

The surrogate mother and the intended parents can enter into a surrogacy agreement, but any agreement is not legally binding and will be unenforceable, even if it has been signed and expenses payments have been made to the surrogate. It is also illegal to charge for the preparation of such an agreement.

Understandably, intended parents may worry that the surrogate mother may change her mind and conversely the surrogate mother may worry that the intended parents may change theirs. In practice, there have in fact only been two reported cases of such a dispute arising. In such circumstances, the court will deal with cases on an individual basis with careful consideration being given to what is in the child’s best interests.

The surrogate mother does have the legal right to keep the child, even if it is not genetically related to her.  She will be the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child.  This is because, in law, the woman who gives birth is always treated as the mother.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

Donation Process

The role of the Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Authority (HFEA) is the UK’s independent regulator of treatment using eggs and sperm and is dedicated to the licensing and monitoring of UK fertility clinics and all UK research involving human embryos.

The HFEA was set up following the introduction of the Human Fertilisation and Embryology Act 1990, as amended by the Human Fertilisation and Embryology Act 2008.

In addition to being a regulatory body, the HFEA also hold a vast amount of information on the HFEA Register, which is the world’s largest national register, about in vitro fertilisation (IVF) and intra cytoplasmic sperm injection (ICSI), donor treatments and the storage of embryos, eggs and sperm.

Changes in the law introduced by the Human Fertilisation and Embryology Act 2008 allow the HFEA to make the information held on the HFEA Register much more accessible to both donors and donor conceived people alike.

Donation

Donation is the altruistic (selfless) gifting of embryos, eggs, or sperm for use in fertility treatment or research, enabling those who are unable to conceive without the help of a third party to be given the opportunity to have a family, or in the case of research, to promote advances in the treatment of infertility and knowledge of the disease.

Before you can become a donor, it is necessary to undergo a screening process to reduce the risk of passing on any diseases or deformities.

The criteria to be eligible to become a donor are different depending on whether you are donating embryos, eggs, or sperm:-

• Embryo donation – The egg donor must be aged between 18 – 35 years old and the sperm donor must be aged between 18 – 45 years old.
• Egg donation – The egg donor must be aged between 18 – 35 years old.
• Sperm donation – The sperm donor must be aged between 18 – 41 years old.

Donors can receive compensation to reasonably cover any financial losses incurred in connection with their donations and again, the compensation that can be claimed differs depending on whether the donation is embryos, eggs, or sperm:-

• Embryo donation – Embryo donors who have eggs, sperm, or embryos stored for use in their own treatment but then decide to donate them can receive compensation of up to £35.00 per subsequent clinic visit required in connection with the donation.
• Egg donation – Egg donors can receive compensation of up to £750.00 per cycle of donation.

In addition to the above, many fertility clinics offer egg sharing programmes, so that in addition to the above expenses which may be claimed for egg donation, the cost of treatment may be subsided for the person donating their eggs.

• Sperm donation – Sperm donors can receive compensation of up to £35.00 per clinic visit.

In all circumstances, there is also provision to claim an excess to cover higher expenses (for example, travel, accommodation, and childcare).  Where the donor is not resident in the UK, the donor will not be permitted to claim excess payments for overseas travel expenses.

Information Rights

Donor Conceived Children

Since its inception on 1 August 1991, the HFEA has kept a record of all donors and donor conceived children conceived at a HFEA licensed clinic.

On reaching the age of 16, all donor conceived children born after 1 April 2005 are able to obtain non-identifying information about the donor, such as their physical characteristics and occupation. At 18 years of age, it is then possible to obtain identifying information, such as the donors name, date of birth, and address.

Egg Donors and Sperm Donors

Since 1 October 2009, egg donors and sperm donors are entitled to request limited information from the HFEA to find out whether their donation was successful, the number of born as a result of their donation, and the sex and year of birth of any child born as a result of their donation.

The HFEA only hold non-identifying information about egg donors and sperm donors from 1 August 1991 to 31 March 2005, unless the egg donor or sperm donor has re-registered as an identifiable egg donor or sperm donor.

It is important to note that the HFEA Register will not hold any information in relation to either donor conceived children or egg donors and sperm donors who were either conceived or who donated outside of a UK licensed clinic or at home.

Consent

All egg and sperm donors must give formal written consent to an embryo being created with their gametes.  It is possible for egg donors and sperm donors to specify conditions which must be followed when giving their consent.

Formal consent must also be given for embryos to be donated to another person or used for research.

Withdrawal of Consent

Consent to treatment, storage, or research can be varied or withdrawn by either the egg donor or the sperm donor any time before the embryos are placed in the body of a woman or used for research.  Withdrawal of consent must be given formally in writing.

Once consent has been withdrawn to the storage of an embryo, everyone involved in the treatment process, i.e. the intended recipient and the other gamete provider, must be notified.  Storage then remains lawful for 12 months to allow a ‘cooling-off’ period for the person who has withdrawn their consent before the embryo is destroyed.  If during the 12 month period all parties give their consent the embryo can be allowed to perish before the expiry of the 12 month period.

The HFEA stipulates that anyone undergoing donor treatment should be offered counselling, although there is no obligation for this to be taken up.

Storage

From 1 October 2009, the law in relation to the storage periods for all embryos, eggs, and sperm was overhauled by the Human Fertilisation and Embryology Act 2008 allowing for a basic statutory storage period of 10 years for all embryos, eggs, and sperm.

This period can be extended up to a maximum of 55 yearly, on a 10 yearly cycle, providing that the egg and sperm donors provide their written consent to storage beyond 10 years and a written opinion is obtained from a registered medical practitioner that the egg or sperm donor or recipient is prematurely infertile.

Any embryos, eggs, or sperm stored prior to 1 October 2009 can still be stored under the old criteria unless you have opted into the new rules.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists.

Adoption – becoming a child’s legal parents

If the intended parents cannot apply for a parental order, for example, because neither of them are genetically related to the baby (donor egg and donor sperm or donor embryos were used), then adoption of the baby is the only option available to them, but it is not an easy one.

If adoption is to be the option used, then a registered adoption agency must be involved in this form of surrogacy arrangement. This is why it is important to get legal advice before you decide to embark on surrogacy.

This option does also involve the consent of the surrogate mother, and should they not agree, an application for a child arrangements order is the intended parents only way to resolve where the child will live in the future.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

Applying for a Parental Order – becoming a child’s legal parents

Under English Law, the legal mother of the child born through surrogacy will always be the woman who gives birth to the child (the surrogate mother).

If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child or apply for a parental order.

The effect of a parental order is that it transfers the rights and obligations of parentage to the intended parents, providing that certain conditions are met.

Applications for a parental order must be made within the first six months of the child’s birth.  However, it cannot be made in the six weeks following the child’s birth as the agreement of the legal mother is ineffective in those first six weeks.

To be able to apply for a parental order:

• At least one of the intended couple must be genetically related to the baby i.e. be the egg or sperm provider. Couples applying must be either husband and wife, civil partners, or two people living as cohabitants in an enduring family relationship who are not related to one another (a single person cannot apply for a parental order)
• The child’s home must be with the intended parents, and either one or both of them must be domiciled (a permanent resident) in the United Kingdom
• At the time of the making of the order, both the intended parents must be over 18 years of age
• The court must be satisfied that the woman who carried the child and her husband/civil partner/cohabitant, if she has one, have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order (see what happens if the surrogate mother changes her mind)

The court can dispense with the need for the agreement of the birth mother where she cannot be found to give consent (reasonable steps need to be taken to find her) or if she is incapable of giving agreement.  Where this is the case, the applicants must state in the application that agreement is not required and provide a statement of facts setting out why.

The respondents to the application are the surrogate mother, any second parent, anyone with whom there is a provision for contact, and/or any other person or body with parental responsibility at the time of the application.

When an application has been made, the court will set a date for hearing the application and appoint a parental order reporter.  The parental order reporter investigates whether the relevant legal requirements have been met, and advises the court on whether there is any reason why an application should be refused.

The court must also be satisfied that no money or other benefit (other than for expenses reasonably incurred) were given or received between any of the parties in consideration of the arrangement i.e. that the surrogacy arrangement was not a commercial arrangement.  However, the court has the discretion to authorise certain payments and benefits between the parties.

The court’s paramount consideration is the child’s welfare, and the adoption welfare checklist will apply. The court has to have regard to a checklist of matters including how each couple or family may or may not be able to meet the needs of the child, throughout their life.  The procedural guidelines here are contained within the Human Fertilisation and Embryology (Parental Orders) Regulations 2010.

A parental order takes effect from the day it is made. At this point, it is advisable to make a Will, or change any existing Will to make provision for the child. Further details in relation to making a Will can be found here. If the intended parents are in current employment, it is also advisable to seek employment advice in order to ascertain their rights in relation to child care, and time away from work. Further details in relation to employment can be found here.

Should neither of the intended parents be biologically related to the child, adoption is the only route of transferring parentage. A child arrangements order will not extinguish the legal ties of the surrogate mother and her consenting husband, civil partner, or cohabitant. If a child arrangements order is made, stating the child is to live with the intended parents,  parental responsibility will be shared equally with the surrogate parents. An application for a special guardianship order, is also a possibility.

If the surrogate mother (or father) changes her (or his) mind, the intended parents will not be able to apply for a parental order and the appropriate application will be a child arrangements order.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

Surrogacy: The Legal Rights of Fathers

Unless parenthood is transferred to the intended father through a parental order or adoption, then the intended father will only become the legal father in the following situations:

• If the surrogate mother is married or in a civil partnership at the time of her treatment (i.e. the placing in her of the embryo or the sperm and eggs, or her artificial insemination), the child’s legal father/legal second parent, will be the person married to/in a civil partnership with, the surrogate mother at the time of the treatment (unless it is shown that the husband/civil partner did not consent to the treatment)
• Where the surrogate mother is unmarried and not in a civil partnership, the legal father, or second parent can be designated in two ways:

1. If no one chooses otherwise, the intended father will be regarded as the legal father of the child, so long as he is the biological father
2. If treatment was performed in a licensed clinic, the surrogate mother can appoint the intended mother or a non-biological father as the second parent.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

Employment Rights for Surrogate Mothers

Surrogate mothers, like all other birth mothers are entitled to full maternity leave and employment protection.

The government is currently working on new regulations which will introduce a form of adoption leave, which will give the equivalent of maternity/paternity leave and pay for intended parents through surrogacy. This will enable them to care for their new baby in the same way as other parents.

The new rules will come into force in April 2015, and will allow intended parents in a surrogacy arrangement, who intend to apply for a parental order, to choose which of them can claim the equivalent of maternity leave and pay, with the other being entitled to the equivalent of paternity leave and pay. The rules apply equally to heterosexual, and same-sex intended parents.

Legal rights to time off and pay are currently very limited but you should check whether your employer offers any contractual rights to time off and pay for intended parents in a surrogacy arrangement.

You are entitled to parental leave if you have worked for your employer for at least a year and you have an adoption order, or you are named on the child’s birth certificate and you have, or expect to have, parental responsibility.

Parental Leave entitles you to take up to 18 weeks leave, per parent, per child, up to your child’s fifth birthday, or up to five years from the start of the adoption. When the new rules come into force in April 2015, all parents will be able to take Parental Leave up to their child’s 18th birthday. You are only allowed to take a maximum of four weeks parental leave per child, per year, unless there is a workplace agreement which allows for more flexible arrangements or your employer allows you to take more than four weeks in one year.

If you want to take a large amount of parental leave following the birth of your child through a surrogacy arrangement, you will have to agree this with your employer.
You must give at least 21 days’ notice. Parental leave is unpaid, but some employers offer paid leave so you should check your contract or ask your employer.

In order to take as much paid leave as possible, intended parents can use annual leave. You should talk to your employer about how much annual leave you can use in one block. If you are saving up leave, you should check with your employer how much leave, if any, can be carried forward from one leave year to the next. You must also be sure to give your employer the correct notice for taking annual leave.

You can also ask your employer for unpaid leave. If this is agreed you should be sure to obtain your employer’s agreement in writing, including the date you are expected to return to work, and confirmation that you will be able to return to the same job.

For further information about employment rights for surrogate mothers, contact our Employment Specialists.

Wills, Life Insurance and Surrogacy

When a child is born through surrogacy the baby is legally the child of the mother who physically gave birth to it up until the time when a parental order is granted in favour of the intended parent. This rule applies whether that mother is genetically related to the baby or not.

Depending on the circumstances of the father of the child (link to section on “The Father’s Rights) there may be a period of time following the child’s birth where the legal rights and responsibilities for the child remain solely with the surrogate mother.

It is vitally important that all are protected during this period in the unfortunate event of any of the parties dying unexpectedly.

If you are a surrogate mother

If you are a surrogate mother and you have a Will, we would strongly advise that you keep it updated.  Should anything happen to you during or after the birth, but before the parental order is made, the surrogate child is legally yours.  Therefore that child could possibly take a share of your estate along with your own children (if any).

If you are a surrogate mother and you do not have a Will, then the intestacy rules will apply to your estate.  The surrogate child, being considered a child of your own, would inherit a share of your estate under these rules.  In order to rectify this, you will need to have a Will prepared which will exclude the surrogate child from having any rights of inheritance.  You will also need to express in your Will that you wish for the intended parents to be guardians of the surrogate child.

If you are the intended parents

Life Insurance
It is usual for the intended parents to take out a life insurance policy for the life of the surrogate mother in order to financially protect her family should anything happen to her as a result of the pregnancy.

Wills
If you are an intended parent, then you need to take account of the fact that until the Parental Order is made, the law may not recognise the child as ‘legally yours’.  In such circumstances, your Will should take this into consideration and expressly mention the surrogate baby, so that it is financially provided for in the event that you unexpectedly died before the parental order is granted. Consideration should also be given to who will take care of the baby, if you and your partner die, and you may wish to appoint guardians in the Will accordingly.

If you are currently in a surrogacy arrangement or about to enter into one, we would strongly advise you to make a Will or update an existing Will.  Please contact our specialist Wills department for advice.

In a surrogacy arrangement, if the child is born abroad, the intended couple can only apply for a parental order if they are living (or domiciled) in the UK.

The parental order officially transfers parental responsibility to the intended couple.  While waiting for the parental order to be processed, the child born abroad will require a visa in order to enter the UK.

The courts are able to grant a parental order if the standard requirements are met.  The Judge is required to consider the sums of money involved in the surrogacy arrangement and whether they are disproportionate or sufficient to overbear the will of the surrogate mother or be an affront to public policy in the UK.  The Judge will also look at the sums of money paid in light of other surrogacy arrangements made in the country of birth, where the surrogacy arrangement could have been entered into, whether the arrangement was legal in that country and how the intended parents have conducted themselves with regard to the matter.

International surrogacy raises highly complex issues of family and immigration law.  It is important that if you are considering entering into an international surrogacy arrangement that you look carefully at the arrangements as a whole, being sure to take legal advice both from a family solicitor and immigration lawyer.  You will also need to consider the child’s immigration and nationality status and the ability to bring the baby back into the UK.

At Fisher Jones Greenwood, we have specialist immigration lawyers who can advise you alongside our family lawyers, see our immigration pages for further details.

There are particularly complex issues when it comes to international surrogacy, which could result in a child being stranded in the country where they are born, leaving the intended parents with no legal recourse to bring the child to UK.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

What if the Surrogate Mother Changes Her Mind?

Understandably, both the surrogate and the intended parents may be concerned about what happens if the other party changes their mind about the surrogacy arrangement.  In reality, the incidence of either party to the arrangement changing their mind is rare.

To date, there have only been two reported cases in UK courts of the surrogate changing her mind: in one, residence was transferred to the intended parents and in the other, the child stayed with the surrogate.

Should the surrogate change her mind before or after the birth of the child, then she has the legal right to keep the child on birth, even if the baby is not genetically related to her.  This is a right of the surrogate, and one that has not gone without criticism and has led to a campaign for change.

The courts have said that the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate finds herself unable to give up the child.  This puts pressure on the surrogacy arrangement which by UK law has to be on the basis of goodwill and trust as public policy prevents the use of commercial surrogacy arrangements.

In the event of a dispute, each case will be dealt with on an individual basis on the facts of that particular case.  The court’s decision is guided by the paramount consideration of the child’s welfare, looking at what is in the best interests of the child.  The court will apply the adoption welfare checklist on an application for a parental order and the welfare checklist on an application for a child arrangements order.  The court will consider whether the child would suffer a measure of harm if removed from the surrogate and placed in the care of the intended parents, as well as how able each of the parents are to meet the child’s needs.

Surrogacy arrangements are not legally enforceable, even if a contract has been signed and the expenses of the surrogate have been paid.  (See more about this on our surrogacy pages).

On an application for a parental order by the intended parents, the court can only dispense with the surrogate’s consent if:

• She cannot be found (and reasonable steps have been taken to find her).
• She is found to be incapable of giving consent.

Like the surrogate, the intended parents are unlikely to change their mind.  In fact, there are no reported cases of this happening in this country, nor are there any reported cases of this happening in any international surrogacy cases involving UK parents.  There have, of course, been international cases in the news recently.

Where a child born through a surrogacy arrangement is conceived via In Vitro Fertilisation (IVF) at a licensed clinic, such clinics are required to follow the provisions of the Human Fertilisation and Embryology Act 2008 and the Human Fertilisation and Embryology Authority (HFEA) Code of Practice, which includes a requirement to :-

• Ensure that proper consideration is taken of the welfare of any child born as a result of the treatment, and any other child who may be affected by the birth.
• Assess the intended parents and the surrogate (and her partner, if she has one) in case there is a breakdown in the surrogacy arrangement.
• Ensure that all those involved in the surrogacy arrangement have received advice about the legal parenthood of any child born via a surrogacy arrangement.
• Give all those involved in the surrogacy arrangement an opportunity to receive proper counselling about the implications of the steps they are considering taking, which should include information of local counsellors and organisations that can provide relevant information if it is not possible services to be provided from a counsellor attached to the clinic.

It is always important for all parties to a surrogacy arrangement to seek legal advice to discuss the implications of a surrogacy arrangement before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].